exh10_6.htm


     

    
      

      

    

     

    
      THIRD
AMENDMENT TO LOAN AND SECURITY AGREEMENT

       

       

      This
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”), dated August 7,
2008, but effective as of June 30, 2008, is among Resource
America, Inc., a Delaware corporation (“Borrower”), TD BANK, N.A. (successor by
merger to Commerce Bank, N.A.), a national banking association, in its capacity
as agent (“Agent”), TD BANK,
N.A. (successor by merger to Commerce Bank, N.A.), a national banking
association, in its capacity as issuing bank (“Issuing Bank”) and each of the
financial institutions which are now or hereafter identified as Lenders on
Schedule A (as such Schedule may be amended, modified or replaced from time to
time) attached to the Loan Agreement (as defined below), (each
such  financial institution, individually each being a “Lender” and
collectively all being “Lenders”).

       

      BACKGROUND

       

      A.           Pursuant
to the terms of a certain Loan and Security Agreement dated May 24, 2007 among
Borrower, Agent and Lenders (as the same has been or may be supplemented,
restated, superseded, amended or replaced from time to time, the “Loan
Agreement”), Lenders made available to Borrower, inter alia, a
revolving line of credit not to exceed Seventy Five Million Dollars
($75,000,000) (the “Loans”).  All capitalized terms used herein
without further definition shall have the respective meaning set forth in the
Loan Agreement and all other Loan Documents.

       

      B.           The
Loans are secured by, inter alia, continuing
perfected security interests in the Collateral.

       

      C.           An
Event of Default exists under the Loan Agreement, and Borrower has requested
Lenders’ waiver of such Event of Default.  Lenders have agreed to
waive such Event of Default in accordance with and subject to the satisfaction
of the conditions hereof.

       

      D.           Borrower
has requested that Agent and Lenders also modify, in certain respects, the terms
of the Loan Agreement and Agent and Lenders have agreed to such modifications in
accordance with and subject to the satisfaction of the conditions
hereof.

       

      NOW,
THEREFORE, with the foregoing Background incorporated by reference and intending
to be legally bound hereby, the parties agree as follows:

       

      1.           Waiver of Existing
Default.  Borrower acknowledges that Borrower failed to
maintain the minimum Consolidated Net Worth required under Section 6.8(a) of the
Loan Agreement for the fiscal quarter ending June 30, 2008 (the “Existing
Default”) and that such failure constitutes an Event of Default under the Loan
Agreement.  Upon satisfaction of each of the Effectiveness Conditions
set forth in Section 8 of this Amendment, Lenders shall be deemed to have waived
the Existing Default as of the date of this Amendment.  Lenders’
waiver of the Existing Default shall in no way be construed as an agreement to
waive any Default or Event of Default that may have occurred prior to the date
hereof other than the Existing Default nor to waive any Default or Event of
Default arising after the date hereof, and Agent and Lenders reserve all rights
and remedies under the Loan Agreement and the Loan Documents as to any Default
or Event of Default other than the Existing Default.  The granting of
the waiver of the

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Existing
Default under this Amendment shall not be construed as a course of conduct or
dealing on the part of Agent and Lenders.

       

      2.           Amendments to Loan
Agreement.

       

      a.           Section
1 of the Loan Agreement shall be amended by deleting the definition of Maximum Revolving Credit
Amount and replacing it as follows:

       

      Maximum Revolving Credit
Amount – Subject to Section 2.9(b), the aggregate sum of each Lender’s
Revolving Credit Pro Rata Share, which in no event shall exceed in the
aggregate:

       

      (a) from August 7, 2008 through
September 29, 2008, Sixty Million Dollars ($60,000,000);

       

      (b) from September 30, 2008 through
December 30, 2008, Fifty-Five Million Dollars ($55,000,000);

       

      (c) from December 31, 2008 through
March 30, 2009, Forty-Five Million Dollars ($45,000,000); and

       

      (d) After March 30, 2009, Thirty
Million Dollars ($30,000,000); provided that notwithstanding any other provision
of this Agreement, after March 30, 2009, the Revolving Credit Pro Rata Share of
U.S. Bank, National Association shall be reduced to Zero Dollars ($0) and U.S.
Bank, National Association shall no longer be a Lender under this Agreement.
..

       

      b.           Schedule
A to the Loan Agreement shall be replaced in its entirety with Schedule A
as attached to this Amendment.

       

      c.           Section
6.8 of the Loan Agreement shall be amended by deleting subsection (a) and
replacing it as follows:

       

      (a) Consolidated Net
Worth - Borrower shall maintain at all times Consolidated Net Worth, to
be tested quarterly at the end of each fiscal quarter, of not less than the
following amounts for the following periods:

      


      June 30,
2008 through September 29,
2008                                                                                                           $150,000,000

      September
30, 2008 through September 29,
2009                                                                                                           $170,000,000

      September
30, 2009 through September 29,
2010                                                                                                           $180,000,000

      September
30, 2010 through September 29,
2011                                                                                                           $190,000,000

      September
30, 2011 through September 29,
2012                                                                                                           $200,000,000

      


       

      3.           Further Amendments.
Each of Borrower and Lenders, as consideration for the waiver of the Existing
Default, hereby agree to negotiate in good faith a future amendment (the “Future
Amendment”) to Section 6.8(a) of the Loan Agreement, and to execute and deliver
such Future Amendment, along with Borrower’s payment of all of Agent’s expenses
and such other

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      items as
Agent may reasonably require in connection with the preparation, execution and
delivery of the Future Amendment, to Agent no later than sixty (60) days after
the date hereof.

       

      4.           Representations and
Warranties.  Borrower warrants and represents to Agent and
Lenders that:

       

      a.           Prior
Representations. Borrower, by its execution of this Amendment, reconfirms
all warranties and representations made to Lenders under the Loan Agreement and
the other Loan Documents and restates such warranties and representations as of
the date hereof, all of which shall be deemed continuing until all of the
obligations due to Secured Parties are indefeasibly paid and satisfied in
full.

       

      b.           Authorization. The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of the transactions herein contemplated (i) are and will be within its
powers, (ii) have been duly authorized by all necessary action on behalf of
Borrower and (iii) are not and will not be in contravention of any order of
court or other agency of government, of law or of any indenture, agreement or
undertaking to which Borrower is a party or by which the property of Borrower is
bound, or be in conflict with, result in a breach of or constitute (with due
notice and/or lapse of time) a default under any such indenture, agreement or
undertaking, or result in the imposition of any lien, charge or encumbrance
of  any nature on any of the properties of the Borrower.

       

      c.           Valid, Binding and
Enforceable. This Amendment and any assignment or other instrument,
document or agreement executed and delivered in connection herewith, will be
valid, binding and enforceable in accordance with their respective
terms.

       

      d.           No
Default.  After giving effect to this Amendment, no Default or
Event of Default exists.

       

      5.           Ratification of Loan
Documents.  This Amendment is hereby incorporated into and made
a part of the Loan Agreement and all other Loan Documents respectively, the
terms and provisions of which, except to the extent modified by this Amendment
are each ratified and confirmed and continue unchanged in full force and
effect.  Any reference to the Loan Agreement and all other Loan
Documents respectively in this or any other instrument, document or agreement
related thereto or executed in connection therewith shall mean the Loan
Agreement and all other Loan Documents respectively as amended by this
Amendment.  As security for the payment of the Obligations, and
satisfaction by Borrower of all covenants and undertakings contained in the Loan
Agreement, Borrower hereby confirms its prior grant to Agent, for the ratable
benefit of Secured Parties, of a continuing first lien on and security interest
in, upon and to all of Borrower's now owned or hereafter acquired, created or
arising Collateral as described in Section 3 of the Loan Agreement.

       

      6.           Confirmation of
Indebtedness. Borrower confirms and acknowledges that as of the close of
business on August 6, 2008, it is indebted to Agent and Lenders under the Loan
Documents in the aggregate principal amount of $43,600,000 without
any deduction, defense, setoff, claim or counterclaim, of any nature as of the
date of this Amendment, plus all fees, costs and Expenses incurred to date in
connection with the Loan Documents.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      7.           Confirmation of Subsidiary
Guarantors.  By its signature below, each Subsidiary Guarantor
hereby consents to and acknowledges the terms and conditions of this Amendment
and agrees that its Surety and Guaranty Agreement dated May 24, 2007 is ratified
and confirmed and shall continue in full force and effect and shall continue to
cover all obligations of Borrower outstanding from time to time under the Loan
Agreement as amended hereby.

       

      8.           Effectiveness
Conditions.  This Amendment shall become effective upon the
satisfaction of the following conditions:

       

      a.           Execution
and delivery of this Amendment by the parties hereto;

       

      b.           Payment
by Borrower of all of Agent’s Expenses;

       

      c.           Payment
by Borrower to Agent, for the benefit of Lenders, of a non-refundable waiver fee
in the amount of Ten Thousand Dollars ($10,000); and

       

      d.           Such
other items as Agent may reasonably require.

       

      9.           Governing
Law.  THIS AMENDMENT, AND ALL RELATED AGREEMENTS AND DOCUMENTS,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA. THE PROVISIONS OF THIS AMENDMENT AND ALL OTHER
AGREEMENTS AND DOCUMENTS REFERRED TO HEREIN ARE TO BE DEEMED SEVERABLE, AND THE
INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION SHALL NOT AFFECT OR IMPAIR THE
REMAINING PROVISIONS WHICH SHALL CONTINUE IN FULL FORCE AND EFFECT.

       

      10.           Modification.  No
modification hereof or any agreement referred to herein shall be binding or
enforceable unless in writing and signed by Borrower and Agent or Lenders, as
required under the Loan Agreement.

       

      11.           Duplicate
Originals:  Two or more duplicate originals of this Amendment
may be signed by the parties, each of which shall be an original but all of
which together shall constitute one and the same instrument.

       

      12.           Waiver of Jury
Trial:  BORROWER, AGENT AND EACH LENDER EACH HEREBY WAIVE ANY
AND ALL RIGHTS EACH MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION,
PROCEEDING OR COUNTERCLAIM ARISING WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO OR UNDER THE LOAN DOCUMENTS OR WITH RESPECT TO ANY CLAIMS ARISING
OUT OF ANY DISCUSSIONS, NEGOTIATIONS OR COMMUNICATIONS INVOLVING OR RELATED TO
ANY PROPOSED RENEWAL, EXTENSION, AMENDMENT, MODIFICATION, RESTRUCTURE,
FORBEARANCE, WORKOUT, OR ENFORCEMENT OF THE TRANSACTIONS CONTEMPLATED BY THE
LOAN DOCUMENTS.

       

      
        [Signature
Pages to Follow]

      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      IN
WITNESS WHEREOF, the undersigned parties have executed this Amendment the day
and year first above written.

       

      
 

      BORROWER:

      Resource
America, Inc.

      


      


      By:                                                                

      Name:                                                                           

      Title:                                                                           

      


      


      AGENT:

      TD BANK, N.A. (successor by
merger to Commerce Bank, N.A.)

      


      
        


        By:                                                                

        Name:                                                                           

        Title:                                                                           



      


      LENDERS:

      TD BANK, N.A. (successor by
merger to Commerce Bank, N.A.),
as
Lender

      
        


        By:                                                                

        Name:                                                                           

        Title:                                                                           



      


      U.S.
Bank, National Association, as Lender


      
        


        By:                                                                

        Name:                                                                           

        Title:                                                                           



      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      AGREED TO AND
ACCEPTED:

      


      SURETIES:

      


      Apidos
Capital Management, LLC


      
        


        By:                                                                

        Name:                                                                           

        Title:                                                                           



      


      


      Chesterfield
Mortgage Investors, Inc.

      
        


        By:                                                                

        Name:                                                                           

        Title:                                                                           



      


      Coredo
Capital Management, LLC

      
        


        By:                                                                

        Name:                                                                           

        Title:                                                                           



      


      


      Ischus
Capital Management, LLC

      


      
        By:                                                                

        Name:                                                                           

        Title:                                                                           

      

      


      


      RAI
Ventures, Inc.

       

      
        By:                                                                

        Name:                                                                           

        Title:                                                                           




      
        
           

        

        
           

          
            

          

        

        
           

        

      

      


                                RCP Financial, LLC

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Credit Management, LLC

      


      
        By:                                                                

        
          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Capital Manager, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Capital Investor, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Capital Partners, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      Resource
Credit Partners GP, Inc.

      


      
        By:                                                                

        
          Name:                                                                           

          Title:                                                                           

        



      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

                                                           
Resource Financial Institutions Group,  Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Financial Fund Management, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Housing Investors I, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Housing Investors II, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Housing Investors III, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Housing Investors IV, Inc.

      


       

      
        By:                                                                

        Name:                                                                           

        Title:                                                                           

      

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

                                          Resource Leasing,
Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Programs, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties VIII, Inc.

      


      
        By:                                                                

        
          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XIV, Inc.

       

      
        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        

      

      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      Resource
Properties XVII, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XXIV, Inc.

      


       

      
        By:                                                                

        Name:                                                                           

        Title:                                                                           

      

       

                                       

                                      Resource Properties
XXV, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           



      

      


      Resource
Properties XXVI, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XXX, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XXXI, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           



      

      


      Resource
Properties XXXIII, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XL, Inc.

      


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      
        
           

        

        
           

          
            

          

        

        
           

        

      

      Resource
Properties XLI, Inc.


       

      
        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XLIX, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties 54, Inc.


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Properties XLVII, Inc.


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Real Estate, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

           

        

      

      Resource
Real Estate Funding, Inc.


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      
        
           

        

        
           

          
            

          

        

        
           

        

      

      Resource
Real Estate Holdings, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Rittenhouse, Inc.

      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      Resource
Real Estate Management, LLC


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      RRE1
Duraleigh Member, LLC


      
         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      RRE2
Duraleigh Member, LLC

      

         

        
          By:                                                                

          Name:                                                                           

          Title:                                                                           

        



      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

      


      


      


       

      


       

      SCHEDULE
“A”

       

      
        	
                 

                Lenders

                 

              	
                Pro
      Rata

                Percentage

              	
                Revolving
      Credit

                Pro Rata Share

              
	
                From
      August 7, 2008 through September 29, 2008:

                 

              
	
                TD
      Bank, N.A. (successor by merger to Commerce Bank, N.A.)

              	
                66.66666666%

              	
                $40,000,000.00

              
	
                 

                U.S.
      Bank, National Association

              	
                 

                33.33333334%

              	
                 

                $20,000,000.00

              
	
                 

                From
      September 30, 2008 through December 30, 2008:

                 

              
	
                TD
      Bank, N.A.

              	
                66.66666666%

              	
                $36,666,667.00

              
	
                 

                U.S.
      Bank, National Association

              	
                 

                33.33333334%

              	
                 

                $18,333,333.00

              
	
                 

                From
      December 31, 2008 through March 30, 2009:

                 

              
	
                TD
      Bank, N.A.

              	
                66.66666666%

              	
                $30,000,000.00

              
	
                 

                U.S.
      Bank, National Association

              	
                 

                33.33333334%

              	
                 

                $15,000,000.00

              
	
                 

                After
      March 30, 2009:

                 

              
	
                TD
      Bank, N.A.

              	
                100%

              	
                $30,000,000.00

              


      

      


      


      


      (Schedule
A to Loan and Security Agreement)